THE AUCKLAND INDIAN ASSOCIATION INCORPORATED V RAMAN PATEL HC AK CIV 2009-404-007322

THE AUCKLAND INDIAN ASSOCIATION INCORPORATED V RAMAN PATEL HC AK CIV 2009-404- 007322 18 December 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-007322BETWEEN THE AUCKLAND INDIAN ASSOCIATION INCORPORATED Applicant AND RAMAN PATEL Respondent Hearing: On The Papers Appearances: CCH Allan/TJP Bowler for Applicant B G Allen for Respondent Judgment: 18 December 2009 at 2 pmJUDGMENT OF ASSOCIATE JUDGE ROBINSONThis judgment was delivered by me on 18 December 2009 at 2 pm, Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar Date. Solicitors: Davenports West, PO Box 21-248, Henderson Grove Darlow & Partners, PO Box 2882, Auckland[1] Pursuant to an order for costs made by Harrison J on 28 July 2009 the respondent was ordered to pay $14,156.80 costs to the applicant in respect of CIV 2007-404-5809 on or before 25 August 2009. Because the respondent was in default of the order for payment of such costs the applicant issued a bankruptcy notice which was duly served on the respondent on 17 September 2009. [2] Following service of the bankruptcy notice on the respondent, the respondent's counsel wrote to the applicant advising that the respondent was solvent and was seeking to have his former solicitors pay the order for costs. Following correspondence between the applicant's solicitors and the respondent's solicitors the respondent paid $15,000 to his solicitors to be held in trust. On receiving that advice the applicant's solicitors applied for and obtained an interim charging order charging the trust account of the respondent's solicitors with payments of costs ordered in the applicant's favour amounting to $14,479.54. When the charging order was served on the respondent's solicitors the applicant received payment of its costs in full. [3] The applicant now seeks costs in connection with the issuing of the bankruptcy notice, the application for the charging order and ancillary matters. Relying on rule 14.6(4)(b) the applicant seeks indemnity costs amounting to $5,240.62. In the memorandum filed by the applicant in support the applicant seeks leave to file further submissions supporting an increased costs order should the Court determine that the applicant is not entitled to indemnity costs. [4] The respondent has filed a memorandum in reply opposing the order for indemnity costs. In that memorandum counsel for the respondent submits that any order for costs should be on the basis of the lower scale. It is pointed out the work involved in the charging order was essentially procedural and mechanical and was directed at a law firm's trust account. [5] On 11 December 2009 an order was made at the applicant's request extending until 15 December 2009 the time for filing a memorandum by the applicant in reply to the respondent's memorandum. The memorandum was received on 17 December 2009. The memorandum concludes with a submissions thatindemnity costs should be imposed because the respondent wilfully disobeyed a Court order. [6] Rule 14.6(4)(b) does enable the Court to order indemnity costs against a party who has disobeyed an order of the Court. There can be no doubt that the respondent has disobeyed the Court order in refusing to pay the costs. [7] However, I take into account in the respondent's favour his payment of sufficient to cover the costs into his solicitor's trust account. Consequently, the serving of the charging order has been effective. [8] I am satisfied the applicant is entitled to costs. Whilst the respondent has shown some contempt for the Court's order in refusing to pay costs his payment of funds sufficient to cover costs into his solicitor's trust account has gone some way to purging that contempt. [9] In the circumstances I am prepared to make an order for the respondent to pay the applicant's costs. However those costs will not be assessed on an indemnity basis for the reasons I have set forth in this Judgment. The costs of the applicant therefore will be allowed in respect of the bankruptcy notice and the charging order on a 2B basis together with disbursements as fixed by the Registrar. ______________________Associate Judge Robinson